Fresh From the Bench: Precedential Patent Cases From the Federal Circuit
In the sole precedential patent case decided this week, Flexuspine v. Globus, the Circuit affirms rulings of the district court relating to verdict forms where the verdict form included a “stop” instruction in the event the jury found there to be no infringement. Among other rulings, the panel found no abuse of discretion in the court’s retiring the jury to continue its deliberations after the jury ignored the “stop” instruction and ruled the patent invalid.
Flexuspine, Inc. v. Globus Medical, Inc., Fed. Cir. Case 2017-1188-89 (January 19, 2018)
Prior to trial, the parties submitted verdict forms. Plaintiff Flexuspine’s proposed verdict form included a “stop” instruction, which conditioned the submission of invalidity on an affirmative finding of infringement. Globus’s proposed verdict form did not. After the conclusion of evidence, the district court held an in-chambers conference in which the jury instructions and verdict form were discussed. The final instructions and verdict form were adopted nearly word-for-word from Flexuspine’s proposals. The next day the court afforded the parties an opportunity to object on the record to the instructions and verdict form. Neither party objected to the verdict form, even after the court specifically asked if either party objected to the question with the “stop” instruction.
After deliberating, the jury came back with a verdict in which it failed to follow the “stop” instruction; that is, even though it found the asserted claims not to be infringed, it continued and found the claims invalid and wrote “0” for damages. The district court instructed the jury to retire again with a blank verdict form and return a verdict consistent with the court’s written instructions on the verdict form. The court then asked whether either party objected to the court sending the jury back to re-execute the verdict form consistent with each instruction included therein, and neither party objected.
The jury returned a verdict in accordance with the court’s instructions, finding the claims not to be infringed, and left the other questions unanswered. Only at this point did Globus object to the verdict form. The court entered a final judgment of non-infringement. The court denied Globus’s Rule 59(e) motion, requesting that the judgment be amended to include the jury’s invalidity verdict. The court also dismissed Globus’s invalidity counterclaims without prejudice and denied as moot Globus’s Rule 59(b) motion that, given the overwhelming invalidity evidence presented at trial, judgment as a matter of law on invalidity was required.
Applying 5th Circuit law, the panel had little trouble disposing of the appeal, ruling that there was no manifest error of law to support Globus’s Rule 59(e) motion to alter or amend the judgment. Globus had argued that the jury’s first answers were not inconsistent with each other, but the panel rules that the answers were necessarily inconsistent because the jury failed to follow the “stop” instruction. The panel further rules that the court did not abuse its discretion when it retired the jury for further deliberations after its initial verdict. It also rejects Globus’s argument that the verdict was inconsistent with the jury instructions, which did not condition that the jury only determine invalidity if it found infringement. The panel notes that Globus did not object to the verdict form and to the extent the verdict form and instructions were inconsistent, when the court asked the jury to retire again, it instructed the jury to follow the instructions on the verdict form.
Finally, the panel rejects Globus’s argument that the district court improperly found waiver of Globus’s right to a jury trial on its invalidity counterclaims based on Globus’s lack of objection to the verdict form. The district court did not deprive Globus of its right to a jury trial outright; it merely declined to submit its counterclaims to this jury. Because the district court dismissed Globus’s invalidity counterclaims without prejudice, the claim survives for Globus to file another day.